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INTRAGENERATIONAL CONSTITUTIONAL
OVERRULING
L.A. Powe, Jr.*
INTRODUCTION
The oral argument over affirmative action in Fisher v. University of Texas1
began with a question of Fisher’s standing, but after a few brief exchanges,
Justice Stephen Breyer changed the subject to the potential overruling of
Grutter v. Bollinger 2: Was Fisher asking that Grutter be overruled? Justice
Breyer explained that Grutter said affirmative action would last for twenty-five
years and “I know that time flies, but I think only nine of those years have
passed.”3 Grutter was not from another era and had engaged the Court’s
“thought and effort,” so why overrule it?4 Fisher’s counsel understood the
question and disclaimed any interest in “chang[ing] the Court’s disposition
of the issue in Grutter.”5
This Article seeks to shed some light on a comparatively rare, but important issue in constitutional jurisprudence: Under what circumstances does
the Supreme Court formally overrule one of its own significant constitutional
precedents within the same judicial generation as the announcement of the
precedent? This phenomenon is one part of the broader role of precedent
and stare decisis in fashioning and maintaining constitutional law—albeit in
part because of the modifier “significant”—there are a limited number of
such cases (some three dozen where the overruled case was decided after the
introduction of President Franklin Roosevelt’s Court-packing plan, roughly
once every other term). All of the cases contain at least one Justice (and
typically more) who participated in the overruled case. Therefore, we can
observe the willingness, if any, of Justices to change their minds in situations
© 2014 L.A. Powe, Jr. Individuals and nonprofit institutions may reproduce and
distribute copies of this Article in any format at or below cost, for educational purposes, so
long as each copy identifies the author, provides a citation to the Notre Dame Law Review,
and includes this provision in the copyright notice
* Anne Green Regents Chair, The University of Texas. I would like to thank Thomas
Krattenmaker, Michael Gerhardt, and Justin Driver for helpful suggestions on earlier drafts
of this Article.
1 133 S. Ct. 2411 (2013).
2 539 U.S. 306 (2003).
3 Transcript of Oral Argument at 8, Fisher, 133 S. Ct. 2411 (No. 11-345).
4 Id.
5 Id.
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where formal adherence to stare decisis would counsel them not to. We can
also see if the Justices’ views on stare decisis and overruling have changed
over time.
I.
CASEY
Today, the formal legal standard governing the decision to overrule is
embodied in Planned Parenthood of Southeastern Pennsylvania v. Casey.6 By the
early 1990s, Roe v. Wade7 had been under increasing assault at the Supreme
Court for a decade,8 so with the confirmation of Justice Clarence Thomas
both pro-choice and pro-life activists believed that Roe would soon be overruled by either a six-to-three or five-to-four vote.9 Instead, in Casey, the Court
created a newly minted version of Roe, then saved that version by overruling
two post-Roe decisions,10 all the while offering the modern era’s most
detailed explanation of when the values of stare decisis should yield to the
demands to overrule.11
The Casey Court asserted that four alternative pragmatic considerations
go into deciding whether to overrule. First, has the rule of the prior case
proven unworkable?12 Second, has there been such reliance on the rule that
overturning it would work hardship on affected parties?13 Third, has the
rule been eroded by subsequent developments in the law?14 Fourth, have
6 505 U.S. 833 (1992).
7 410 U.S. 113 (1973).
8 Rust v. Sullivan, 500 U.S. 173 (1991) (upholding, five to four, over First Amendment
objections a requirement that forbade any person engaged in federally funded pregnancy
counseling from mentioning the possibility of an abortion or providing a referral to someone who would); Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (holding constitutional, five to four, a requirement that physicians perform a test to determine viability, but
also, five to four, refusing to overrule Roe); Thornburgh v. Am. Coll. of Obstetricians and
Gynecologists, 476 U.S. 747 (1986) (invalidating, six to three, a statute requiring use of
abortion procedure that provides the most protection of the life of the fetus in a postviability abortion); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983)
(holding, six to three, requirements that second trimester abortions be performed in hospitals, that women be informed about the consequences of abortion, and that a twenty-four
hour waiting period prior to an abortion all are violations of Roe).
9 LUCAS A. POWE, JR., THE SUPREME COURT AND THE AMERICAN ELITE 307 (2009).
10 Thornburgh, 476 U.S. at 747; City of Akron, 462 U.S. at 416.
11 For the prior era, Justice Brandeis’s dissent in Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 410–11 (1932), was the leading authority as illustrated by a student note. Note,
Constitutional Stare Decisis, 103 HARV. L. REV. 1344 (1990) (trying, just two years before
Casey, to improve on the arguments in the then-current Webster decision). In another student note, William Rehnquist’s son devoted several pages to Brandeis’s Burnet opinion.
James C. Rehnquist, Note, The Power that Shall be Vested in a Precedent: Stare Decisis, the Constitution and the Supreme Court, 66 B.U. L. REV. 345, 350–53 (1986). On this Note, see infra
note 40.
12 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855 (1992).
13 Id.
14 Id.
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the underlying facts changed or come to be seen differently so as to rob the
rule of justification?15
The Casey Court then concluded that none of these considerations justified overruling the “central holding” of Roe that a woman has a right to
choose an abortion before viability, a right that cannot be unduly burdened
by government regulation.16 Roe had not proven unworkable. While “reliance on Roe cannot be exactly measured,” the cost of overruling “for people
who have ordered their thinking and living around that case [cannot] be
dismissed.”17 Thus Roe was deemed that rarest of situations where reliance
was found outside of a commercial context. Subsequent doctrine had not
weakened Roe’s “doctrinal footings.”18 Finally, while “time ha[d] overtaken
some of Roe’s factual assumptions”—changing when viability begins and
allowing for safer late-term abortions—the Court stated that these went to
timing and competing interests and “ha[d] no bearing on the validity of Roe’s
central holding.”19
The Casey Court went on to contrast its decision with earlier Courts’
decisions to overrule Lochner20 (employing Lochner as a short-hand for the
Court’s pre-1937 laissez faire jurisprudence) and Plessy v. Ferguson.21 In both
situations the Court concluded that the underlying facts had either changed
or were understood differently, so much so that the Court would have paid a
“terrible price” had it not overruled.22 With the Great Depression, most people understood that an unregulated market could not “satisfy minimal levels
of human welfare.”23 Similarly most people could understand that Plessy’s
conclusion that segregation did not stamp African-Americans with a badge of
inferiority was no longer tenable; segregation stigmatized and penalized African-Americans. By contrast because none of the pragmatic criteria pointed
to overruling Roe, overruling it would be seen to constitute caving to political
pressure: the Court would therefore pay “the terrible price” if it jettisoned
Roe.24
Having concluded not to overrule Roe—or, more precisely, to reconceptualize Roe and then to stand fast behind that reconceptualization—the
Court then proceeded to overrule two cases applying Roe. The Casey Court’s
newly fashioned “undue burden” test allowed states to require specific record
keeping, to require a specified informed consent, and to impose a waiting
period between the consent and the abortion.25 Roe’s so-called “central hold15 Id.
16 Id. at 860–61.
17 Id. at 856.
18 Id. at 857.
19 Id. at 860.
20 Lochner v. New York, 198 U.S. 45 (1905).
21 163 U.S. 537 (1896).
22 Casey, 505 U.S. at 864.
23 Id. at 862.
24 Id. at 864.
25 See Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 758
(1986); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 426 (1983).
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ing” was important; its various applications less so and hence less entitled to
the benefits of stare decisis for reasons that remain somewhat obscure.
The Court’s treatment of stare decisis enjoys credibility because Justices
Sandra Day O’Connor, Anthony Kennedy, and David Souter appear to have
changed their positions—at least in part, if perhaps not entirely—out of
respect for stare decisis. Justice O’Connor had been supportive of regulations of abortion in the 1980s.26 Justice Kennedy had questioned abortion as
a constitutional right in the only direct challenge to abortion since he took
his seat.27 All three Justices had been in the majority in Rust v. Sullivan,28
ostensibly a First Amendment case but in reality one driven by opposition to
abortion. The three Justices who had participated in Roe remained
unchanged. Justice Harry Blackmun fully supported Roe, while Justices
Byron White and William Rehnquist, the two original dissenters, supported
overruling.29
Although the Casey holding on stare decisis remains, formally, the governing rule (or set of legal standards) by which to judge whether a constitutional precedent should be overruled,30 a moment’s reflection reveals several
deficiencies with Casey’s approach. For starters, the Court’s treatments of
Lochner and Plessy are plainly disingenuous. The Court that eviscerated Lochner’s economic substantive due process law and the Warren Court that
uprooted the “separate but equal” doctrine knew that Lochner and Plessy were
wrong the day they were decided on the basis of facts then known to anyone
who bothered to read the first Justice John M. Harlan’s dissent in both cases.
Thus, one needs to add to Casey’s list of four considerations another: Do
the Justices now feel that the case was wrong the day it was decided? Michael
Gerhardt’s study of precedent concluded this was the second most common
reason for overruling,31 and, indeed, it may be possible that the “wrong when
decided” test supplants all others, except perhaps the reliance factor.
Why does Casey not mention this criterion for overruling? I suspect that
it was unmentioned for an obvious reason—it was the precise claim the four
Casey dissenters leveled at Roe, and Justices O’Connor, Kennedy, and Souter
appeared unwilling (and perhaps unable) to defend Roe against that claim.
26 See Webster v. Reprod. Health Servs., 492 U.S. 490, 522 (1989); Thornburgh, 476 U.S
at 815; City of Akron, 462 U.S. at 452.
27 See Webster, 492 U.S. at 518.
28 500 U.S. 173 (1991) (dealing with federally funded family service providers).
29 See id. at 176; id. at 220 (Blackmun, J., dissenting).
30 Interestingly, the Court in the modern era has held that only it is entitled to apply
this rule. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Lower courts have been admonished not to depart from Supreme Court precedent but rather to apply that precedent
faithfully unless or until the Supreme Court itself jettisons the precedent. Id.
31 See MICHAEL J. GERHARDT, THE POWER OF PRECEDENT 19 (2008); see also Philip
Frickey, A Further Comment on Stare Decisis and the Overruling of National League of Cities, 2
CONST. COMMENT. 341, 342 (1985). In addition to Gerhardt, broader studies of precedent
are found in SAUL BRENNER & HAROLD SPAETH, STARE INDECISIS (1995) and HAROLD SPAETH
& JEFFREY SEGAL, MAJORITY RULE OR MINORITY WILL (1999).
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Further, as the doctrinal (shall we say?) elasticity underlying Casey shows,
“overruling” is not a simple on/off switch. Casey totally reconceived Roe’s
logical basis, completely rewrote the rules of Roe, overruled two of Roe’s ancillary decisions, and then pronounced that respect for stare decisis counseled
that Roe should not be overruled. “Applying precedents requires interpreting them, interpreting them frequently entails modifying them, and modifying them often entails extending or contracting them.”32 Slightly differently
put, because the Court has freedom to do whatever pleases it at the
moment,33 overruling is merely one of many options available to the Court in
drafting (and crafting) an opinion, as Casey itself reveals. Inconsistent precedent can be ignored.34 Or it can be disingenuously distinguished.35 Express
overrulings are infrequent compared to decisions that render prior law irrelevant.36 Even less frequent are cases where the Court says it reaches a result
under the Constitution because precedent compels it notwithstanding that
some of the Justices find the result untenable.37 There must be, then, a fair
amount of bobbing and weaving going on in the Court’s interpretation of its
precedents.38
32 GERHARDT, supra note 31, at 34–35.
33 LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS (2000).
34 Thus Cohen v. California, 403 U.S. 15 (1971), protecting under the First Amendment
wearing a jacket emblazoned with “Fuck the Draft,” never mentions the three-year-old
United States v. O’Brien, 391 U.S. 367 (1968), which allowed punishing those who burned
their draft cards in protest of the Vietnam War. See Thomas G. Krattenmaker, Looking Back
at Cohen v. California: A 40-Year Retrospective from Inside the Court, 20 WM. & MARY BILL RTS.
J. 651, 679 (2012) (“How was what O’Brien did any different from what Cohen did[?] . . .
Cohen, I would argue, shows why the O’Brien Court should have looked more carefully at
the government’s assertedly nonspeech related justifications for punishing O’Brien for
engaging in behavior that, in its communicative aspects, was indistinguishable from
Cohen’s actions. . . . Perhaps more dramatically, how can one extol the virtues of uncensored emotive outbursts on public issues without even noting that this appears to be precisely what O’Brien involved, too?”). Miami Herald v. Tornillo, 418 U.S. 241 (1974),
presented an identical issue to Red Lion Broadcasting v. Federal Communications Commission,
395 U.S. 367 (1969), regarding a personal attack on a public figure by a media corporation, but the former never mentioned the latter. See THOMAS G. KRATTENMAKER & LUCAS A.
POWE, JR., REGULATING BROADCAST PROGRAMMING 194 (1994); L.A. Powe, Jr., Tornillo, 1987
SUP. CT. REV. 345.
35 Just as Federal Communications Commission v. Pacifica, 438 U.S. 726 (1978), forbidding
saying “fuck” and six other dirty words over the public airways, does to Cohen. Thomas G.
Krattenmaker & L.A. Powe, Jr., Televised Violence, 64 VA. L. REV. 1123, 1229–31 & nn.638,
639, 642 (1978) (comparing various possibilities: averting the eyes v. even turning off the
radio leaves the harm intact; no evidence of anyone powerless to avoid Cohen’s jacket v.
one actual complaint about Pacifica’s broadcast; thirty days in jail v. potential loss of millions if broadcast license revoked).
36 For instance the law of confessions after Miranda v. Arizona, 384 U.S. 436 (1966),
created its requirement of warnings.
37 Dickerson v. United States, 530 U.S. 428 (2000) (reaffirming Miranda, with only
Justices Scalia and Thomas dissenting).
38 Brandenburg v. Ohio, 395 U.S. 444 (1969), is excessive. L.A. Powe, Jr., Brandenburg:
Then and Now, 44 TEX. TECH L. REV. 69, 71 (2012) (“If taken seriously, the Brandenburg test
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Finally, the Casey treatment of overruling has an almost pristine naı̈veté
about it, suggesting that overruling takes place only when something internal
to law has changed—and therefore that that something is neither the composition of the Court nor the ideologies of the Justices. Deciding whether to
change the law, the Court would have us believe, requires simply the application of four fairly objective tests whose outcomes should not be greatly
affected by the ideologies, backgrounds, or political ambitions of those applying them. Casey seems to suggest that the decision whether or not to overrule
depends not on changes in the Court’s personnel but rather changes in society. The counterpoint to this view was expressed by Justice Antonin Scalia
three years before Casey when he wrote that “[o]verrulings of precedent
rarely occur without changes in the Court’s personnel.”39 What would we
perceive if we look at intragenerational constitutional overrulings through
the lens of a shifting personnel make-up rather than the Casey factors?
These reflections on Casey lead to two conclusions at the outset. First,
any study of overrulings needs to account for two factors in addition to those
cited in Casey: (1) Was the precedent wrong when decided (however that
may be determined), and (2) have changes in the Court’s personnel made
the precedent untenable or abhorrent to a new majority? Second, even with
these amendments to the list of Casey factors, a study of overrulings needs to
be taken with a grain of salt.40 As Casey itself proves, whether subsequent
Case B overrules earlier Case A is often a matter of interpretation and the
choice to hollow out an unwanted precedent is all too available and much
solved the constitutional issue present since Schenck [v. United States, 249 U.S. 47 (1919),]
by implicitly holding that all the cases that upheld convictions were wrongly decided. The
only problem with such an interpretation is that the Court cited Dennis [v. United States,
341 U.S. 494 (1951),] favorably even though the test articulated only the requirement that
the possibility of attempted overthrow of the government at some unspecified later date
when conditions were ripe outweigh the minimal intrusion on free speech. Furthermore,
Brandenburg quoted Noto v. United States[, 367 U.S. 290 (1961),] on the advocacy–incitement distinction without noting that in a companion case, Scales v. United
States[, 367 U.S. 203 (1961),] the defendant went to jail.” (footnotes omitted)).
39 South Carolina v. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J., dissenting).
40 Consider the statement of Chief Justice Rehnquist: “‘[S]tare decisis in constitutional
law is pretty much of a sham.’” JOHN A. JENKINS, THE PARTISAN: THE LIFE OF WILLIAM
REHNQUIST 250 (2012) (quoting Letter from William Rehnquist to James Rehnquist (Dec.
17, 1986)). The statement came in a letter to his son, James C. Rehnquist dated December
17, 1986. Id. at 309 n.248. At the time, James was Editor-in-Chief of the Boston University
Law Review. James’s student note was entitled The Power that Shall be Vested in a Precedent:
Stare Decisis, the Constitution and the Supreme Court, and it began by noting the then-current
overruling of National League of Cities v. Usery, 426 U.S. 833 (1976), by Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985). See Rehnquist, supra note 11, at 345.
The note’s thesis was that the “world of constitutional adjudication would surely profit
from a rejection of stare decisis.” Id. at 374. This is preceded by a lengthy section: “The
Myth of Principled Overruling.” Id. at 358–64. The Rehnquists may have been correct in
1986, but as this Article will note, this is just about the time that most members of the
Court began to discuss stare decisis more frequently.
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less likely to be met with hostile criticism.41 Nevertheless, it does matter
when the Court explicitly intones “overruled,” if only because this is the only
instance in which lower courts are permitted to disregard the overruled precedent.42 Even for constitutional adjudication, lower courts remain the principal decision makers in the legal system of the United States. Moreover,
based on my experience of following the Court carefully for over forty years, I
think the Justices take seriously the use of the word “overruled”—which helps
explain why it did not appear in a Brown43 opinion that was designed not to
inflame the South any more than would occur naturally from the result
itself.44
II. WHICH CASES?
Now let us explore constitutional cases that resulted in intragenerational
overrulings. I will follow Casey’s pragmatic criteria while also adding “wrong
the day it was decided” and then subsequently focus on changes in the
Court’s personnel as an additional or alternative explanatory factor. I begin
by looking at the universe of constitutional cases (excluding only those of
minimal importance45 and those reversed on rehearing46) that were over41 See Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to
Miranda v. Arizona), 99 GEO. L.J. 1 (2010) (offering an excellent descriptive and normative discussion of the subject).
42 Hicks v. Miranda, 422 U.S. 332 (1975).
43 Brown v. Bd. of Educ., 347 U.S. 483 (1954).
44 POWE, supra note 33, at 29.
45 Gray v. Sanders, 372 U.S. 368 (1963) (applying one person, one vote to gubernatorial elections), and Wesberry v. Sanders, 376 U.S. 1 (1964) (applying one person, one vote to
congressional elections), are probably the most important cases I excluded, but I did so
because the majorities did not even bother to acknowledge their overrulings and because
Baker v. Carr, 369 U.S. 186 (1962), already covers the area. The other cases excluded as too
minimal are: Lee v. Florida, 392 U.S. 378 (1968) (holding inadmissible illegally intercepted
phone calls in state court), Perez v. Campbell, 402 U.S. 637 (1971) (holding state law preempted as regulation of immigrants), United States v. Scott, 437 U.S. 82 (1978) (holding
there to be no double jeopardy when the state appeals a decision favoring defendant when
the defendant sought termination of trial on basis other than guilt or innocence), United
States v. Salvucci, 448 U.S. 83 (1980) (holding that defendants charged with possession may
only claim benefits of exclusionary rule if their own Fourth Amendment rights are violated), United States v. Ross, 456 U.S. 798 (1982) (holding on the scope of an automobile
search), Alabama v. Smith, 490 U.S. 794 (1989) (holding on when a sentence at trial
exceeds a sentence from a guilty plea), California v. Acevedo, 500 U.S. 565 (1991) (holding
on the scope of automobile searches), United States v. Dixon, 509 U.S. 688 (1993) (holding
on the definition of same offense under double jeopardy), Nichols v. United States, 511 U.S.
738 (1994) (holding on whether a prior conviction enhanced sentencing), Hudson v.
United States, 522 U.S. 93 (1997) (holding that civil and then criminal penalties for the
same conduct does not constitute double jeopardy), and Pearson v. Callahan, 555 U.S. 223
(2009) (holding on qualified immunity in civil action for warrantless search). Perhaps
those who teach criminal law might disagree with my characterization, but from a constitutional law perspective it makes sense.
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ruled within a generation (21 years)47 of their being handed down.48 This
significantly limits the number of cases to be considered because the “average lifespan of an overruled precedent is 29.2 years.”49 Furthermore,
because there were few overrulings in the first century of the Supreme Court
and, more specifically, because the entire “constitutional universe” changed
after President Roosevelt’s Court-packing plan, I limit the data to the opinions where the overruled case was decided after 1937.50
As Brown v. Board of Education illustrates, a case can be overruled without
explicit use of the term, and I have included three cases—Baker v. Carr,51
Gregg v. Georgia,52 and Gonzales v. Carhart 53—which do not explicitly overrule
but clearly do have such an effect.54 There may be others,55 and there cer46 The one exception is Reid v. Covert, 354 U.S. 1 (1957) (holding overseas military
dependents cannot be tried by courts martial for criminal offenses), because it also overruled Kinsella v. Krueger, 351 U.S. 470 (1956).
47 If I limited the years to the nineteen between Roe and Casey, only three overrulings
would be eliminated: Gideon v. Wainwright, 372 U.S. 335 (1963), overruling Betts v. Brady,
316 U.S. 455 (1942); Moore v. Ogilvie, 394 U.S. 814 (1969), overruling MacDougall v. Green,
335 U.S. 281 (1949); and Batson v. Kentucky, 476 U.S. 79 (1986), overruling Swain v. Alabama, 380 U.S. 202 (1965).
48 I began with the lists from GERHARDT, supra note 31, app. at 207–45 (to which I
added Baker v. Carr and Gonzales v. Carhart), and the Congressional Research Service’s
“Supreme Court Decisions Overruled by Subsequent Decision.” S. DOC. NO. 108-17, app.
at 2385–99 (2004). The reason I added Baker and Carhart even though neither uses the
magic word is that the dissenters thought the majority had overruled (and so do I), and the
old law was gone. After all, Brown never mentioned overruling Plessy. I cut down both lists
when I believed they were too generous in declaring a prior case overruled.
49 GERHARDT, supra note 31, at 11.
50 There were forty-four overrulings prior to West Coast Hotel v. Parrish, 300 U.S. 379
(1937). West Coast Hotel ended the Lochner era by upholding a state law that mandated a
minimum wage for women. Id.
51 369 U.S. 186 (1962) (holding that legislative redistricting constitutes a justiciable
controversy and implicitly ushering in the one person, one vote requirement).
52 428 U.S. 153 (1976) (reinstating capital punishment).
53 550 U.S. 124 (2007) (upholding the Partial-Birth Abortion Ban Act of 2003).
54 Gerhardt agrees that Baker is an implicit overruling, and his book was completed
before Carhart. GERHARDT, supra note 31, at 25. He does not treat Gregg as an overruling,
but he does list Furman v. Georgia, 408 U.S. 238, 254 (1972), the case Gregg implicitly overruled, as implicitly overruling McGautha v. California, 402 U.S. 183 (1971), on standardless
sentencing in capital cases. GERHARDT, supra note 31, at 25. It seems to me that the two
situations are remarkably similar. Justices Potter Stewart and Byron White changed their
votes from McGautha to Furman and then changed again (and back) from Furman to Gregg.
Both Furman and Gregg had significant changed facts. In Furman it was the imminent execution of hundreds of death row inmates previously protected by stays. In Gregg it was the
thirty-five new state laws authorizing capital punishment. While there is a rough
equivalency, I tilt toward Gregg over Furman being the more important development, and,
as with Baker, Gray v. Sanders, and Wesberry v. Sanders, I believe only one case should be
counted. See supra note 45.
55 For instance both the Congressional Research Service and Gerhardt list Miller v.
California, 413 U.S. 15 (1973), as overruling Memoirs v. Massachusetts, 383 U.S. 413 (1966).
See S. DOC. NO. 108-17, app. at 2395 (2004); GERHARDT, supra note 31, app. at 225. To be
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tainly are examples of hollowed out precedents as Barry Friedman shows,56
but my focus is on changes in the law where all agree Case B overrules Case
A. During the post-1937 period the Congressional Research Service lists 189
cases, both statutory57 and constitutional, as having been overruled. The
subset I discuss is a little over one-sixth of the total. They are listed chronologically in the Appendix. Almost two-thirds of them were decided during
the chief justiceships of Earl Warren and Warren Burger: fourteen during
the Warren Court (of which seven were its own) and nine during the Burger
Court (seven from the Warren era, two of its own).
III.
CASEY’S CATEGORIES APPLIED
A look at Casey, Brown, and the end of laissez faire economic protection
suggests that falling within one of the categories may not be a sufficient reason for overruling. There is the aforementioned claim that Roe was wrong
the day it was decided, but Casey reaffirmed Roe’s “central holding.”58 Beginning with Missouri ex rel. Gaines v. Canada 59 the doctrinal underpinnings of
Plessy had been steadily eroded and segregation was perceived vastly differently than it had been in 1896, but Henderson v. United States 60 refused, contrary to the suggestion of the Justice Department, to overrule Plessy.
Similarly, the Great Depression exposed laissez faire economics as untenable,
but Morehead v. New York ex rel. Tipaldo 61 still reaffirmed Adkins v. Children’s
Hospital.62 Casey, however, offers clues, for in overruling two cases—but not
Roe—the opinion showed that more than one of Casey’s four considerations
are often present when there is a decision to overrule.
sure, the law of obscenity changes between Memoirs, Redrup v. New York, 386 U.S. 767
(1967), and Miller, but it is not clear that either Fanny Hill (Memoirs) or second-string girlie
magazines hoping to be the down-market Playboy (Redrup) would be obscene under Miller.
Thus I do not perceive this as an overruling.
56 See supra note 41.
57 Because of the focus on constitutional overrulings, I have no occasion to comment
on the mindless application of stare decisis in reaffirming Major League Baseball’s antitrust exemption. See Flood v. Kuhn, 407 U.S. 258 (1972) (failing to overrule Toolson v.
New York Yankees, 346 U.S. 356 (1953), and Federal Baseball Club v. National League, 259
U.S. 200 (1922)).
58 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).
59 305 U.S. 337 (1938) (holding that providing a law school for whites but not for
African-Americans denies equal protection).
60 339 U.S. 816, 825–26 (1950) (segregating train passengers in a dining car by a wood
partition highlights “the artificiality of a difference in treatment which serves only to call
attention to a racial classification of passengers” and thereby violates the Interstate Commerce Act).
61 298 U.S. 587 (1936) (holding a minimum wage for women unconstitutional), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
62 261 U.S. 525 (1923) (holding a minimum wage for women unconstitutional), overruled by West Coast Hotel, 300 U.S. at 379.
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Unworkable
Still, one factor that should be sufficient by itself is unworkability, the
first consideration mentioned in Casey. To be sure, very few constitutional
doctrines prove unworkable, but if a doctrine cannot be applied sensibly, it
should be jettisoned. Twice the modern Court has asserted unworkability as
a justification for overruling. In one instance, the overruling of National
League of Cities v. Usery 63 supposedly taught that the Court could not apply a
doctrine that would preclude federal rules that “operate to directly displace
the States’ freedom to structure integral operations in areas of traditional
governmental functions.”64 However, in Seminole Tribe of Fla. v. Florida65 the
Court backed off the rule that Congress has the authority to override Eleventh Amendment protections of states (so long as the law explicitly does
so).66
Garcia v. San Antonio Metropolitan Transit Authority 67 found National
League of Cities unworkable because it was supposedly impossible for Courts to
determine whether a particular governmental function was integral or traditional.68 The Court might instead have relied on four cases subsequent to
National League of Cities in which the Court rejected state claims that federal
rules were too intrusive on state choices.69 In other words, the showing of
unworkability in Garcia appears to have been the result of subsequent developments that eroded National League of Cities—with EEOC v. Wyoming,70
which permitted the application of federal age discrimination laws to state
workers, being close to indistinguishable from National League of Cities.
When Seminole Tribe v. Florida71 overruled Union Gas the majority noted
that “lower courts that have sought to understand and apply the deeply fractured decision” have been “confus[ed]” because Union Gas’s necessary fifth
vote had repudiated the rationale of the plurality.72 Yet if the rule of Union
Gas is that when Congress exercises its powers it can abrogate sovereign
immunity, that rule can easily be applied—is Congress exercising a delegated
63 426 U.S. 833 (1976) (holding that Congress may not expand the Fair Labor Standards Act to cover state public employees).
64 Id. at 852.
65 517 U.S. 44 (1996).
66 Id. at 59–60.
67 469 U.S. 528 (1985).
68 Id. at 546–47.
69 See EEOC v. Wyoming, 460 U.S. 226, 229 (1983) (holding that state agencies must
comply with federal age discrimination law); FERC v. Mississippi, 456 U.S. 742, 770 (1982)
(forcing consideration but not adoption by state utility commissions of federal proposals);
United Transp. Union v. Long Island R.R., 455 U.S. 678, 682 (1982) (holding that Congress’s authority to regulate the railroad industry reaches even state-owned railroads);
Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 268 (1981) (holding that
private businesses must restore strip-mined land).
70 EEOC, 460 U.S. at 229.
71 517 U.S. 44 (holding Congress lacks Article I power to override the states’ Eleventh
Amendment immunity from suit in federal court).
72 Id. at 64.
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power?—regardless of its underlying rationale. Unworkability hardly seems a
sufficient explanation for such an easily applied rule.
A better explanation for the overruling was that Union Gas “essentially
eviscerated [the] decision in Hans.”73 It did so by a “misreading of precedent” and a “misplaced” reliance on a case74 that had relied on Section 5 of
the subsequent Fourteenth Amendment.75 To this, the majority noted that a
majority in Union Gas also “expressly disagreed with the rationale of the plurality.”76 Thus, Seminole Tribe appears the opposite of Garcia. The latter overruled because subsequent developments eroded National League of Cities,
while the former overruled Union Gas because it was inconsistent with previous developments—which if they were to be followed means that Union Gas
was wrong the day it was decided. In any case, neither Garcia nor Seminole
Tribe seems truly an opinion on unworkability, and this indicates that this
factor may prove empty.
The best example of unworkability is presented by Casey itself in its
acknowledgement that Roe’s trimester approach was becoming increasingly
obsolete. As O’Connor recognized in her first abortion opinion—a dissent—
medical advances both allowed for earlier viability and made later third-trimester abortions safer.77 Casey substituted for Roe’s trimester approach the
new rationale that Roe rested on a “central holding” that a woman’s right to
choose an abortion before viability cannot be unduly burdened by government regulation.78 The plurality recognized that Roe’s trimesters were no
longer workable, “[a]nd there is no line other than viability which is more
workable.”79
Casey’s other three categories—reliance, erosion, and changed facts—
may not each be sufficient, in and of themselves, to generate overruling but
each is discussed in order. This will be followed by a discussion of “wrong the
day it was decided” to which Seminole Tribe offers an offshoot—inconsistent
with prior decisions.
B.
Reliance
It is easy to dismiss reliance. The reliance cited in Casey—where the
claim that women organize their lives in reliance on the ability to have an
abortion (and, apparently, not contraceptives or the morning after pill) is
73 Id. The Court was referring to Hans v. Louisiana, 134 U.S. 1, 20–21 (1890), which
held that states are immune from suit by their own citizens in federal court.
74 Seminole Tribe, 517 U.S. at 65 (discussing the plurality’s reliance on Fitzpatrick v.
Bitzer, 427 U.S. 445, 448 (1976), which held that Congress, under the Fourteenth Amendment, may authorize suits against states in federal court).
75 Id.
76 Id. at 66.
77 City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 456–57 (1983)
(O’Connor, J., dissenting).
78 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).
79 Id. at 870–71.
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not the most credible assertion80—is an illustration of why reliance is rarely a
factor in any decision about stare decisis in a case that does not involve economics. But rare is not never. In Dickerson v. United States 81 the Court
offered something like reliance82 as the rationale for leaving Miranda v. Arizona 83 standing. Perhaps reliance in the noneconomic sphere internalizes,
as Casey articulated,84 the Court’s view of the likely public reaction to a formal overruling.
C.
Erosion
The most prevalent explanation for overruling in the modern era is that
the precedent being overruled had been eroded by subsequent developments in the law.85 This rationale was invoked frequently during the heyday
of the Warren Court, as the majority undertook its wide-scale transformation
of constitutional law, especially casting aside previously conceived federalism
constraints to nationalize the Bill of Rights.86 The bulk of the overruling
cases citing doctrinal erosion were decided during this period.
Mapp v. Ohio, holding the exclusionary rule to be a necessary remedy for
a Fourth Amendment violation,87 is the first of these cases. While the Court
stated that the “factual considerations”88 underlying Wolf v. Colorado 89 had
changed, all the changes stemmed from judicial decisions. In the twelve
years since the Court had rejected the exclusionary rule in Wolf, “more than
half of those [states] since passing upon it, by their own legislative or judicial
decision, have wholly or partly adopted or adhered” to the exclusionary
rule.90 At the time of Wolf the Court thought there might be other remedies
for a Fourth Amendment violation, but Irvine v. California 91 recognized “the
obvious futility” of relying on such measures.92 The Wolf Court thought the
exclusionary rule was, in the words of Judge Benjamin Cardozo, “either too
strict or too lax,” but “the force of that reasoning has been largely vitiated by
80 Id. at 956 (Rehnquist, C.J., concurring in part and dissenting in part).
81 530 U.S. 428 (2000).
82 Id. at 443 (“Miranda has become embedded in routine police practice to the point
where the warnings have become part of our national culture.”).
83 384 U.S. 436 (1966).
84 Casey, 505 U.S. at 865–68 (plurality opinion).
85 One day we may see this announced with respect to Miranda, as Friedman, supra
note 41, at 25, illustrates. Or maybe Miranda will just be gutted to a hollow shell and left
for the ages.
86 See POWE, supra note 33, at 494.
87 Mapp v. Ohio, 367 U.S. 643, 657 (1961).
88 Id. at 651, 653.
89 338 U.S. 25, 33 (1949) (finding the Fourth Amendment’s exclusionary rule inapplicable to states), overruled by Mapp, 367 U.S. 643.
90 Mapp, 367 U.S. at 651.
91 347 U.S. 128, 136 (1954) (holding admissible evidence from multiple warrantless
police break-ins of home in state trials).
92 Mapp, 367 U.S. at 652–53.
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later decisions of this Court.”93 With the way cleared, Mapp overruled Wolf
and brought Fourth Amendment doctrine in the state courts into harmony
with the federal courts.
Although Justice Hugo Black’s opinion in Gideon v. Wainwright treated
Betts v. Brady 94 as wrong the day it was decided,95 Justice John Harlan’s concurring opinion suggests it was eroded away.96 The pre-Gideon rule was not
“no counsel for indigents”; it was that counsel had to be provided only when
there were special circumstances requiring it. Capital cases always required
counsel.97 For the decade after Betts v. Brady cases “found special circumstances to be lacking, but usually by a sharply divided vote.”98 After 1950,
however, special circumstances were found in every case as the “Court has
come to recognize . . . that the mere existence of a serious criminal charge
constituted in itself special circumstances requiring the services of counsel.”99 In effect Harlan was stating that Betts had already been overruled, and
that Gideon just formalized the rule.
Mapp and Gideon set the stage for the rapid discarding of decisions that
had refused to apply the Fifth Amendment’s Self-Incrimination Clause to the
states. Malloy v. Hogan formally incorporated the Fifth Amendment,100 and
then both Murphy v. Waterfront Commission101 and Spevack v. Klein102 overruled earlier cases that did not conform to the now-applicable federal rule.
Just as incorporation of the Self-Incrimination Clause led to quick application overrulings, so too did the incorporation of the Double Jeopardy
Clause.103 Ashe v. Swenson104 held collateral estoppel was an aspect of
Double Jeopardy. The Court also held that introduction into evidence of a
93 Id. at 653 (quoting People v. Defore, 150 N.E. 585, 588 (N.Y. 1926)).
94 316 U.S. 455 (1942).
95 Gideon v. Wainwright, 372 U.S. 335, 339 (1963) (overruling Betts v. Brady, 316 U.S.
455, which had refused to extend the Sixth Amendment’s guarantee of counsel for indigent federal defendants to the states).
96 Id. at 350–51 (Harlan, J., concurring).
97 See Hamilton v. Alabama, 368 U.S. 52, 55 (1961). There was similar dicta in existence when Betts v. Brady was decided. See, e.g., Avery v. Alabama, 308 U.S. 444, 445–46
(1940).
98 Gideon, 372 U.S. at 351 (Harlan, J., concurring).
99 Id.
100 378 U.S. 1, 6, 8 (1964) (holding the Fifth Amendment privilege against self-incrimination applicable to the states and overruling Adamson v. California, 332 U.S. 46 (1947)).
101 378 U.S. 52, 79–80 (1964) (holding that one jurisdiction in the federal system may
not, absent an immunity provision, compel a witness to give testimony that could incriminate him in another jurisdiction). Murphy overruled Feldman v. United States, 322 U.S. 487
(1944), Knapp v. Schweitzer, 357 U.S. 371 (1958), and Mills v. Louisiana, 360 U.S. 230
(1959). Murphy, 378 U.S. at 52, 54.
102 385 U.S. 511, 514 (1967) (holding that an attorney cannot be disbarred for invoking
Fifth Amendment privilege and overruling Cohen v. Hurley, 366 U.S. 117 (1961)).
103 Benton v. Maryland, 395 U.S. 784, 794 (1969) (holding the Double Jeopardy Clause
applicable to the states).
104 397 U.S. 436, 441, 445 (1970) (holding that collateral estoppel is part of double
jeopardy and overruling Hoag v. New Jersey, 356 U.S. 464 (1958)).
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non-testifying co-defendant’s confession violated the Confrontation
Clause.105
Along with criminal procedure, equal protection was another area of
explosive change during the Warren Court era. Harper v. Virginia Board of
Elections106 invalidated a state poll tax because the Court’s voting rights law
had changed and, more bluntly, so had the times: “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do
change.”107 Thus, because of the shift in voting decisions once Baker v. Carr
cleared the way by declaring them to be justiciable controversies, Moore v.
Ogilvie108—dealing with ballot access—could note simply that the earlier
decision it was overruling was “out of line with our recent reapportionment
cases.”109
When Swain v. Alabama refused to put an end to racially discriminatory
peremptory challenges,110 it was wildly out of line with the Warren Court’s
entire jurisprudence dismantling Jim Crow.111 The Burger Court remedied
the error in Batson v. Kentucky112 by noting that standards to make out a
prima facie case of racial discrimination under the Equal Protection Clause
had “developed” since Swain.113
A notable development after 1963 was the dismantling of the loyaltysecurity programs that had been created early in the Cold War. New York’s
Feinberg Law was struck down on vagueness grounds in an opinion that itself
was hopelessly vague but rejected the right-privilege distinction, once relied
upon but steadily undermined for a decade.114
As Establishment Clause jurisprudence changed even as the tripartite
Lemon115 test survived (despite heavy conservative criticism even coming
105 Bruton v. United States, 391 U.S. 123, 126 (1968) (holding that non-testifying codefendant’s confession cannot be introduced in trial of defendant). Bruton overruled Delli
Paoli v. United States, 352 U.S. 232 (1957). Bruton, 391 U.S. at 126.
106 383 U.S. 663, 666 (1966) (holding that a poll tax violates Fourteenth Amendment
and overruling Breedlove v. Suttles, 302 U.S. 277 (1937), and Butler v. Thompson, 341
U.S. 937 (1951)).
107 Id. at 669.
108 394 U.S. 814, 819 (1969) (dealing with ballot access and residential requirements
and overruling MacDougall v. Green, 335 U.S. 281 (1948)).
109 Id. at 818.
110 Swain v. Alabama, 380 U.S. 202, 221–22 (1965).
111 For evidence that Swain was appreciated as such, see Justin Driver, The Constitutional
Conservatism of the Warren Court, 100 CAL. L. REV. 1101, 1130–39 (2012).
112 476 U.S. 79 (1986).
113 Id. at 93.
114 Keyishian v. Bd. of Regents, 385 U.S. 589, 605, 609 (1967) (holding unconstitutionally vague several aspects of New York’s anti-communist Feinberg Law and overruling Adler
v. Board of Education, 342 U.S. 485 (1952)).
115 Lemon v. Kurtzman, 403 U.S. 602, 607, 612–13 (1971) (holding that state salary
supplements to teachers of secular subjects in private schools violate the Establishment
Clause and articulating the test that requires statutes to have a secular purpose, to have a
principal or primary effect that does not advance religion, and to not foster an excessive
entanglement of government and religion).
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from the Solicitor General),116 the Court in the 1990s was more accommodating of government assistance to religious institutions. Agostini v. Felton117
overruled a pair of cases and allowed secular teachers to teach in religious
schools, noting that “recent cases have undermined the assumptions upon
which [the overruled cases] relied.”118
In the last year of the Warren Court, O’Callahan v. Parker held that members of the armed services could not be tried by courts martial for crimes
unrelated to the military.119 The opinion relied on history and an unstated
skepticism about the fairness of military justice.120 Solorio v. United States
presented multiple justifications for overruling O’Callahan.121 The history
offered in the earlier case was “less than accurate,” the earlier case departed
from prior law, and later decisions had emphasized the primary responsibility
of Congress in the area.122
D.
New Facts
The earliest overrulings, in the Jehovah’s Witness cases, exhibit two different ways that facts can be newly perceived to justify overruling. Murdock v.
Pennsylvania saw selling religious pamphlets as a religious activity,123 not a
commercial business as Jones v. Opelika had.124 More significantly, West Virginia State Board of Education v. Barnette treated the objection to the flag salute
as involving individuals’ rights not to be compelled to say something they did
not believe125 rather than a justifiable burden on their free exercise of religion as Minersville School District v. Gobitis held.126
Mapp offered a more sanguine view of the empirical effects of the exclusionary rule than Wolf did.127 The Court believed there would be no deterrence without the exclusionary rule and that any costs it imposed on the
police were manageable.128
116 “The problem is Lemon.” Brief for the United States as Amicus Curiae Supporting
Petitioners at 20, Lee v. Weisman, 505 U.S. 577 (1992) (No. 90-1014) (holding that prayer
at high school graduation violates the Establishment Clause). It is likely that Lemon survived because the new conservative majority was just as able to tame it as the former majority had been to manipulate it for liberal ends.
117 521 U.S. 203, 222 (1997) (overruling Aguilar v. Felton, 473 U.S. 402 (1985), and
School District of Grand Rapids v. Ball, 473 U.S. 373 (1985)).
118 Id.
119 O’Callahan v. Parker, 395 U.S. 258, 274 (1969).
120 Id. at 263–68.
121 Solorio v. United States, 483 U.S. 435, 442, 447 (1987).
122 Id.
123 Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943) (“[I]t plainly cannot be said that
petitioners were engaged in a commercial rather than a religious venture.”).
124 Jones v. Opelika, 316 U.S. 584, 598 (1942) (“[W]e view these sales as partaking
more of commercial than religious . . . transactions . . . .”).
125 W. Vir. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943).
126 Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 592 (1940).
127 See supra text accompanying notes 87–93.
128 See supra text accompanying notes 87–93.
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A major cultural and political change involved the exclusion of women
from jury service. Hoyt v. Florida,129 decided in 1961 before Betty Friedan
published The Feminine Mystique and launched the modern feminist movement,130 rested its decision to permit exclusion of women from jury duty on
the conclusion that the “woman is still regarded as the center of home and
family life.”131 But Taylor v. Louisiana132 was decided in the 1970s after those
events and while the Equal Rights Amendment looked like an easy bet for
ratification. Taylor’s conclusion that Hoyt was “no longer tenable” matched
the times.133
The capital punishment overrulings have consistently asserted changed
facts. There can be little doubt that Gregg v. Georgia134 resulted from the
changed atmosphere surrounding the death penalty.135 It was possible at the
time of Furman v. Georgia136 to believe capital punishment was at an end. But
when thirty-five states reinstated their death penalties, it was obvious that the
Court’s reading of the public had been wrong.137 Atkins v. Virginia138 explicitly invoked the “evolving standards of decency that mark the progress of a
maturing society” to ban the execution of the mentally retarded.139 When
the Court had ruled the other way only two states had barred those executions, but in the ensuing twelve years sixteen more had joined them.140
Holding that crimes committed by juveniles could not be subject to capital
punishment was more of a stretch, but the Court found that five additional
states precluding it showed a “consistency [in the] direction of change.”141
Two further important cases deserve mention even though neither
expressly overruled a precedent. Baker v. Carr found legislative apportionment a justiciable issue;142 until then it was assumed to be nonjusticiable.143
Gonzales v. Carhart144 upheld a congressional ban on so-called partial birth
abortions. Seven years earlier the Court had invalidated a similar Nebraska
law.145
129 368 U.S. 57 (1961). A later case, Taylor v. Louisiana, 419 U.S. 522 (1975), declined
to follow Hoyt.
130 See BETTY FRIEDAN, THE FEMININE MYSTIQUE (1963).
131 Hoyt, 368 U.S. at 62.
132 419 U.S. 522 (1975).
133 Id. at 537.
134 428 U.S. 153 (1976).
135 Id. at 179.
136 408 U.S. 238 (1972).
137 Gregg, 428 U.S. at 179.
138 536 U.S. 304, 314 (2002) (overruling Penry v. Lynaugh, 492 U.S. 302 (1989)).
139 Id. at 312 (quoting Trop v. Dulles, 356 U.S. 86, 100–01 (1958)) (internal quotation
marks omitted).
140 Id. at 314–15.
141 Roper v. Simmons, 543 U.S. 551, 566 (2005) (overruling Stanford v. Kentucky, 492
U.S. 361 (1989)).
142 Baker v. Carr, 369 U.S. 186, 237 (1962).
143 See Colegrove v. Green, 328 U.S. 549, 556 (1946).
144 550 U.S. 124, 168 (2007).
145 Stenberg v. Carhart, 530 U.S. 914, 946 (2000).
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Many states had not redistricted for decades, and in the 1950s urban
governments looked to the nation’s capital rather than state capitals for aid.
Justice William “Brennan’s Court papers contain a contemporaneous University of Virginia study showing that nationally ‘big city voters have less than
one-half the representation of people in open-country areas.’”146 Chief Justice Earl Warren believed (myopically) that if the country had reapportioned
earlier, Brown would have been unnecessary.147 Bluntly, the Baker majority
perceived the adverse costs of malapportionment as vastly more consequential than the Court had in the aftermath of World War II. And, as with Brown,
the Justices understood that if they did not act, no one would because, given
incumbency, politics, and constitutional structure, no one could.
Gonzales also reflected a new perception of facts. The opinion accepted
a buyer’s remorse view of abortions (as offered in an amicus brief)148 and
coupled it with a moral judgment against what it deemed a particularly gruesome procedure.149 Thus the Court asserted that women come to regret having abortions because an abortion denies the natural love between mother
and child.150
E.
Wrong the Day It Was Decided
There are several ways to say “wrong the day it was decided.” Lawrence v.
Texas151 was blunt: Bowers v. Hardwick152 “was not correct when it was
decided.”153 The most subtle was Gideon. In holding that an indigent defendant must be provided counsel, the Court relied solely on cases decided
before Betts v. Brady—the case Gideon was overruling.154
Four years later Justice Black, the author of Gideon, used the same technique to overrule Perez v. Brownell, which upheld a federal statute inflicting
involuntary loss of citizenship upon a naturalized American who voted in a
foreign election.155 The opinion in Afroyim v. Rusk156 cited only two opinions in text: the 1824 Chief Justice Marshall opinion in Osborn v. Bank of the
United States157 was cited favorably,158 and Chief Justice Taney’s Dred Scott
146 POWE, supra note 33, at 202 (quoting ED CRAY, CHIEF JUSTICE 380 (1997)).
147 G. EDWARD WHITE, EARL WARREN 189 (1982).
148 Gonzales, 550 U.S. at 159.
149 Id. at 141.
150 Id. at 159.
151 539 U.S. 558 (2003) (holding that a statute punishing homosexual sodomy violated
liberty under the Due Process Clause).
152 478 U.S. 186 (1986), overruled by Lawrence, 539 U.S. 558.
153 Lawrence, 539 U.S. at 578.
154 Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (overruling Betts v. Brady, 316 U.S.
455 (1942)).
155 356 U.S. 44, 62 (1958), overruled in part by Afroyim v. Rusk, 387 U.S. 253 (1967).
156 387 U.S. 253.
157 22 U.S. (9 Wheat.) 738, 827 (1824).
158 Afroyim, 387 U.S. at 261 (“[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge
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decision was (naturally) cited unfavorably.159 Both cases, as well as the
murky legislative history of the Fourteenth Amendment, were asserted to
point to a lack of power in Congress to denaturalize involuntarily.160 Afroyim
is unlike Gideon, however, because in footnotes it acknowledged that subsequent to Perez the Court had struck down statutory involuntary denaturalization on a case-by-case basis.161
The Court’s most common way to demonstrate that a precedent was
wrong the day it was decided is to refute the reasoning of the prior case
without suggesting that anything has changed in the intervening years. This
was done in the most famous quick overruling in the modern era.162 Barnette, holding that a state cannot punish children who will not participate in
the flag salute, contains a point-by-point refutation of the rationales offered
in the three-year-old eight-to-one decision in Gobitis.163 Reid v. Covert, invalidating courts martial overseas for civilian dependents of service members,164
flatly rejected the Article III reasoning of Kinsella v. Krueger.165 Frank v. Maryland166 “must be overruled,” Camara v. Municipal Court167 concluded,
because the “reasons put forth . . . are insufficient to justify [the result].”168
Similarly, when the Court concluded that victim impact statements were
admissible in the penalty phase of a capital case, the Court stated that the
overruled cases, two and four years old, were “wrongly decided.”169
Like results came with the instant overruling of Jones v. City of Opelika.
Murdock claimed the Jones majority was “distort[ing] . . . the facts of record to
describe [Jehovah’s Witnesses’] activities as the occupation of selling books
and pamphlets.”170 Then there was National League of Cities, which noted that
or abridge those rights. The simple power of the national Legislature, is to prescribe a
uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects
the individual.” (alteration in original) (quoting Osborne, 22 U.S. (9 Wheat.) at 827)).
159 Id. at 262 (discussing the negative reaction to Dred Scott v. Sandford, 60 U.S. (19
How.) 393 (1857)).
160 Id. at 267.
161 Id. at 255 & nn.4–5.
162 The most famous quick overruling is, of course, in the Legal Tender Cases. See infra
text accompanying notes 246–47.
163 See supra notes 125–26 and accompanying text.
164 Reid v. Covert, 354 U.S. 1, 3, 5 (1957).
165 Id. at 41 (overruling Kinsella v. Krueger, 351 U.S. 470 (1956)).
166 359 U.S. 360 (1959) (holding that municipal inspectors do not need search warrants), overruled in part by Camara v. Mun. Court, 387 U.S. 523 (1967).
167 387 U.S. at 528.
168 Id. at 534.
169 Payne v. Tennessee, 501 U.S. 808, 830 (1991) (overruling Booth v. Maryland, 482
U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989)).
170 Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943).
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Maryland v. Wirtz171 had relied on dicta from a 1936 case that was “simply
wrong.”172
Two cases, Hudgens v. NLRB173 and Citizens United v. Federal Election Commission,174 while purporting to rely on subsequent decisions, look like decisions claiming the overruled case was wrong the day it was decided. Labor
picketing at a strip mall had been protected by the Warren Court175 but was
undermined a couple of years later when the Court allowed a large shopping
mall to ban leafleting that was unrelated to the mall’s operation.176 Then in
Hudgens the Burger Court sided with the second of the two inconsistent decisions to overrule the protection of labor picketing.177 There was a reverse
progression in campaign finance leading to the Citizens United decision resting on its rejection of the later view that excessive spending independent of a
candidate could equal corruption.178 The Court believed it was confronted
with conflicting lines of precedent where the overruled case was “not well
reasoned” and “undermined by experience.”179
Finally, Seminole Tribe’s overruling of Union Gas because the latter was
inconsistent with pre-existing developments offers another window into
“wrong the day it was decided” because being inconsistent with pre-existing
precedent matters only if the existing precedents should have been followed.
Casey once again also fits this category because in overruling two prior cases it
noted they were “inconsistent with Roe’s statement that the State has a legitimate interest in promoting the life or potential life of the unborn.”180 In
other instances the Court has offered statements like a “short-lived departure,”181 “essentially disregarded” conflicting cases,182 “undermined impor171 392 U.S. 183 (1968) (ruling that the Fair Labor Standards Act applied to public
hospitals), overruled by Nat’l League of Cities v. Usery, 426 U.S. 833 (1976).
172 Usery, 426 U.S. at 855, overruled by Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528 (1985).
173 424 U.S. 507 (1976) (holding that there is no First Amendment right to picket on
private property open to the public).
174 558 U.S. 310 (2010) (holding that there is a First Amendment right to contribute
unlimited sums of money to organizations that are independent of a candidate in order to
influence elections).
175 Amalgamated Food Emps. Union Local 590 v. Logan Valley Plaza, Inc. 391 U.S. 308
(1968), abrogated by Hudgens, 424 U.S. 507.
176 Lloyd Corp. v. Tanner, 407 U.S. 551, 570 (1972).
177 Hudgens, 424 U.S. at 518.
178 Citizens United, 558 U.S. at 365, 368 (overruling Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), and overruling in part McConnell v. FEC, 540 U.S. 93 (2003)).
179 Id. at 363–64.
180 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 870 (1992).
181 Jackson v. Denno, 378 U.S. 368, 384 (1964) (holding that the judge, not jury, must
rule on voluntariness of confessions and overruling Stein v. New York, 346 U.S. 156
(1953)).
182 Chimel v. California, 395 U.S. 752, 760 (1969) (limiting searches incident to a lawful arrest in a home and overruling United States v. Rabinowitz, 339 U.S. 56 (1950)).
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tant principles of this Court’s . . . jurisprudence,”183 or “so far depart[ed]
from proper equal protection analysis”184 to illustrate departure.185
Wrong the day it was decided may be so ubiquitous that a number of
cases where the Court relies on doctrinal erosion—like Batson on racial peremptory challenges—or changed facts, like with partial-birth abortions—are
really examples of the overruled case being deemed by the new majority to
have been wrong the day it was decided. Casey’s intentional failure to mention what appears to be the principal factor in overruling seriously undermines the credibility of its treatment of stare decisis.
IV. THE DISSENTERS
We know what the Casey dissenters thought about the decision not to
overrule Roe. They were acidic about the failure to overrule a case they
believed was wrong the day it was decided:
The Court would profit, I think, from giving less attention to the fact of this
distressing phenomenon [political pressure], and more attention to the
cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to
determine the law, but upon what the Court calls “reasoned judgment,”
which turns out to be nothing but philosophical predilection and moral
intuition. . . . What makes all this relevant to the bothersome application of
“political pressure” against the Court are the twin facts that the American
people love democracy and the American people are not fools. As long as
this Court thought (and the people thought) that we Justices were doing
essentially lawyers’ work up here—reading text and discerning our society’s
traditional understanding of that text—the public pretty much left us
alone. . . . [But if] our pronouncement of constitutional law rests primarily
on value judgments, then a free and intelligent people’s attitude towards us
183 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231 (1995) (holding federal racial
classifications subject to strict scrutiny and overruling Metro Broad., Inc. v. FCC, 497 U.S.
547 (1990)).
184 City of New Orleans v. Dukes, 427 U.S. 297, 306 (1976) (holding that grandfathering two businesses from regulatory regime does not violate equal protection and overruling Morey v. Doud, 354 U.S. 457 (1957), which had held that excluding American Express
by name does not violate equal protection). Dukes also noted that Morey was “the only case
in the last half century to invalidate a wholly economic regulation . . . on equal protection
grounds.” Dukes, 427 U.S. at 306.
185 Other cases in this category are Hudson v. United States, 522 U.S. 93 (1997) (holding
that civil and then criminal penalties for same conduct do not constitute double jeopardy
and overruling United States v. Halper, 490 U.S. 435 (1989)), Solorio v. United States, 483
U.S. 435 (1987) (holding that the military may use courts martial for off-base non-service
related crimes and overruling O’Callahan v. Parker, 395 U.S. 258 (1969)), Illinois v. Gates,
462 U.S. 213 (1983) (holding that totality of the circumstances is the appropriate standard
for deciding when to issue a search warrant based on an unnamed informant and overruling both Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410
(1969)), and then just last term, Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding
that a jury not judge must find facts necessary to increase a mandatory minimum statutory
sentence and overruling Harris v. United States, 536 U.S. 545 (2002)).
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can be expected to be (ought to be) quite different. The people know that
their value judgments are quite as good as those taught in any law school—
maybe better.186
But what about the dissenters in the cases that did in fact overrule
(because with three exceptions—Gideon,187 Dukes,188 equal protection in the
economic sphere, and Murphy v. Waterfront Commission,189 self-incrimination
between jurisdictions—there were always dissents)? What, beyond a mere
appeal to stare decisis, did they offer?
A surprising answer is the infrequency of the appeal to stare decisis prior
to the mid-1980s. Dissents did not follow Justices O’Connor, Kennedy, and
Souter in Casey in refusing to assert the correctness of the original case; all of
the dissents went to the merits to claim that the overruled case had been
correctly decided.
The failure to assert stare decisis by the dissenters in the early Jehovah’s
Witness cases, Murdock and Barnette, and the civilian dependent court martial
case, Reid v. Covert, might be explicable by the recent vintage of the overruled
case. But once the 1960s started, overruled cases had a more mature pedigree. Yet only in Mapp did a dissenter join stare decisis with an argument on
the merits. Thereafter, as the Warren Court transformed constitutional law
at an increasing pace, the conservative dissenters did not bother to wave the
flag of stare decisis. Then, in 1974 when the Burger Court overruled the
Warren Court’s Hoyt v. Florida on excluding women from juries, then-Justice
William Rehnquist relied on stare decisis without invoking it by name: “The
complete swing of the judicial pendulum 13 years later must depend for its
validity on the proposition that during those years things have changed in
constitutionally significant ways. I am not persuaded . . . .”190
Two years later, liberals were on the losing end in major cases: free
speech on another’s open property in Hudgens, federal power to apply the
Fair Labor Standards Act to state employees in National League of Cities, and
the resumption of capital punishment in Gregg. Yet their dissents never
invoked stare decisis. Similarly, when Illinois v. Gates191 overruled the warrant requirements of Aguilar v. Texas192 and Spinelli v. United States,193 Justice
186 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1000–01 (1992) (Scalia, J.,
concurring in part and dissenting in part) (citation omitted).
187 Gideon v. Wainwright, 372 U.S. 335 (1963).
188 Dukes, 427 U.S. at 297.
189 378 U.S. 52 (1964).
190 Taylor v. Louisiana, 419 U.S. 522, 540 (1975) (Rehnquist, J., dissenting).
191 462 U.S. 213, 230–31 (1983) (stating that when dealing with a warrant request based
on an unnamed informant the “totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific
‘tests’ be satisfied” (footnote omitted), and overruling Aguilar v. Texas, 378 U.S. 108
(1964), and Spinelli v. United States, 393 U.S. 410 (1969) (providing for tightened standards for magistrates issuing search warrants based on information of unnamed
informant)).
192 378 U.S. at 108.
193 393 U.S. at 410.
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William J. Brennan (with Justice Thurgood Marshall) dissented, but only to
show that the overruled cases had the correct rule.
For reasons that are not clear, two years after Gates in the mid-1980s
both conservative and liberal dissenters began to appeal to stare decisis in
addition to defending the original case on the merits. This movement began
with overruling National League of Cities in Garcia and continued with barring
racially motivated peremptory challenges in Batson. Then, in Solorio, with its
allowance of courts martial for crimes committed off duty and off base, liberals joined in.
By the time of Casey, therefore, both sides of the Court had been invoking stare decisis for only about seven years and this would continue in the
1990s when liberals lost on two of their strongly held constitutional beliefs—a
high wall of separation between church and state in Agostini194 and affirmative action in Adarand Constructors.195 The liberal dissenters in Seminole Tribe,
however, did not mention stare decisis when arguing for the power of the
federal government to override a state’s Eleventh Amendment immunity,
undoubtedly because there had been no majority opinion in Pennsylvania v.
Union Gas.
Two culture war cases, Lawrence v. Texas196 and Gonzales v. Carhart,197
each produced dissenters arguing stare decisis. Justice Scalia clearly enjoyed
twitting Justices O’Connor, Kennedy, and Souter for refusing to follow their
Casey opinion and instead protecting same-sex sexual conduct by overruling
the seventeen-year-old Bowers.198 Justice Ginsburg felt equally strongly about
abortion (even partial-birth abortion) and claimed that the majority—written
by Justice Kennedy (from the Casey majority)—“is hardly faithful to [Casey’s]
invocations of ‘the rule of law’ and the ‘principles of stare decisis.’”199 Justices
Scalia and Ginsburg were subsequently joined by Justice Stevens’s impassioned dissent in Citizens United.200 Like all Justices, he recognized that stare
decisis had its limits but felt the unlimited corporate campaign spending
issue was too important to ignore the past.201
When the conservatives lost on the ability to execute juveniles (who had
committed a murder) and the mentally retarded, they dissented on the merits202 but did not invoke stare decisis even though in the new century its
invocation had become almost routine. Perhaps it is the intensity the dissenters feel about the issue that determines whether a claim of stare decisis will
be attached to a defense on the merits (as if their intensity should override
194 Agostini v. Felton, 521 U.S. 203 (1997).
195 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
196 539 U.S. 558 (2003).
197 550 U.S. 124 (2007).
198 See, e.g., Lawrence, 539 U.S. at 586–87 (Scalia, J., dissenting).
199 Gonzales, 550 U.S. at 191 (Ginsburg, J., dissenting).
200 Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310 (2010).
201 Id. at 408–09 (Stevens, J., dissenting).
202 See Roper v. Simmons, 543 U.S. 551, 587 (2005) (O’Connor, J., dissenting); id. at
607 (Scalia, J., dissenting, joined by Rehnquist, C.J. & Thomas, J.); Atkins v. Virginia, 536
U.S. 304, 321 (2002) (Rehnquist, C.J., dissenting, joined by Scalia & Thomas, JJ.).
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the probably equal intensity the majority feels about the issue under
consideration).
Just as the decision to overrule rather than distinguish seems random,
so, too, does the decision by dissenters to invoke stare decisis. All one can say
is that although contemporary dissenters do not always invoke stare decisis,
they do so more often than their counterparts did twenty-five years ago.
V.
THOSE WHO CHANGED THEIR MINDS
How often have individual Justices contributed to overruling by changing their minds? The early 1940s mea culpa of Justices Black, William O.
Douglas, and Frank Murphy on the treatment of Jehovah’s Witnesses is probably the most famous example of Justices switching on an issue—especially
since they had so recently taken the opposite position.203 For the next four
decades, individual Justices changed their minds from Case A to Case B with
some frequency, but with a single exception there was always a number of
years between the initial case and the one that overruled it.
The two next overrulings, now in the 1950s and 1960s, also saw a Justice
switching his position. Reid v. Covert, the civilian court-martial case, resulted
in part from Justice Harlan’s changing his mind over the summer and, with
Justice Frankfurter, creating the new majority by adding their votes to those
of Chief Justice Warren and Justices Black and Douglas.204 Mapp’s five-tofour result also was the result of a change of mind as Justice Black, who had
agreed with the Wolf result, concocted the absurd theory that the Fifth
Amendment privilege against self-incrimination was a sufficient supplement
to the Fourth Amendment to require that illegally seized evidence be
excluded at trial.205 This allowed him to switch. The real contrast between
Barnette, Reid, and Mapp and subsequent cases is that the former had Justices
who changed their minds; in the future there were fewer switches. Thus,
following Mapp and Baker v. Carr (where Justices Black, Douglas, and Frankfurter held to their original positions), in the eight subsequent overruling
cases only two Justices, Chief Justice Warren in Bruton v. United States 206 and
Justice Brennan in Afroyim v. Rusk,207 changed from their original
position.208
203 MELVIN I. UROFSKY, DIVISION AND DISCORD 110–11 (1997); 12 WILLIAM M. WIECEK,
THE BIRTH OF THE MODERN CONSTITUTION 227–28 (2006).
204 See Reid v. Covert, 354 U.S. 1, 1 (1957) (Black, J., writing for the majority and joined
by Warren, C.J., and Douglas & Brennan, JJ.).
205 See Mapp v. Ohio, 367 U.S. 643, 662 (1961) (Black, J., concurring).
206 Bruton v. United States, 391 U.S. 123 (1968) (holding that non-testifying co-defendant’s confession cannot be admitted at trial).
207 387 U.S. 253 (1967).
208 Justice Black dissented in both Jackson v. Denno, 378 U.S. 368, 401 (1964) (holding
regarding the taking of the issue of voluntariness of a confession from the jury) (Black J.,
dissenting in part and concurring in part), and the overruling of Stein v. New York, 346 U.S.
156, 197 (1953) (Black, J., dissenting), but the Stein dissent was on a different point.
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The Burger Court, perhaps the most difficult modern Court to characterize successfully, began with an overruling case in which a Justice switched
votes. The case was Ashe v. Swenson, and the issue was double jeopardy collateral estoppel.209 Justice Harlan changed an earlier opposite position,
although only by acceding to subsequent developments (that he had
opposed). The Burger Court also decided the case that tied Murdock for the
single largest number of switches taking place. The case was Taylor v. Louisiana.210 Justices Douglas, Brennan, and Potter Stewart all changed the position they took in Hoyt v. Florida to hold that women could not automatically
be excluded from jury service.211 Taylor reflected the force majeure of the
modern feminist movement.
Justice Stewart switched two other times: in Hudgens v. NLRB 212 on the
issue of picketing on private property, and in Gregg, on the issue of capital
punishment, in which Justice Byron White also switched to hold that murderers could be executed.213 Justices White and Brennan both switched again to
forbid racially motivated peremptory challenges in Batson.214 Justice Brennan was the sole Justice remaining from the one case invalidating an economic regulation on equal protection grounds, Morey v. Doud,215 and he
joined its unanimous overruling in Dukes v. New Orleans.
The Warren Court Justices were appointed during the era (1932–1968)
of Democratic dominance and, as noted, they were certainly willing to switch
and overrule. From Justices Black and Douglas’s switch in the Jehovah’s Witness cases216 to Justices Brennan and White’s flip on racially based peremptory challenges, Justices who served on the Warren Court changed their votes
between Case A and Case B eighteen times.
Justices Brennan217 and Stewart218 led the switches with four each. Justices Black,219 Douglas (thirty-one years apart, longer than all but a handful
209 Ashe v. Swenson, 397 U.S. 436, 441, 445 (1970) (holding that collateral estoppel is
part of double jeopardy and overruling Hoag v. New Jersey, 356 U.S. 464 (1958)).
210 419 U.S. 522 (1975).
211 Id. at 525.
212 424 U.S. 507 (1976).
213 Gregg v. Georgia, 428 U.S. 153, 169, 207 (1976).
214 See Batson v. Kentucky, 476 U.S. 79, 81 (1986) (Powell, J., writing for the majority
and joined by Brennan, White, Marshall, Blackmun, Stevens, & O’Connor, JJ.).
215 354 U.S. 457 (1957), overruled by City of New Orleans v. Dukes, 427 U.S. 297 (1976).
216 See Murdock v. Pennsylvania, 319 U.S. 105 (1943), and West Virginia State Bd. of
Educ. v. Barnette, 319 U.S. 624 (1943), for the early Jehovah’s Witness cases, which for
these purposes I am treating as a single case.
217 See, e.g., Batson, 476 U.S. 79 (involving racial peremptory challenges); Dukes, 427
U.S. 297 (involving economic equal protection); Taylor v. Louisiana, 419 U.S. 522 (1975)
(involving women on juries); Afroyim v. Rusk, 387 U.S. 253 (1967) (involving involuntary
denaturalization).
218 See, e.g., Gregg, 428 U.S. 153; Nat’l League of Cities v. Usery, 426 U.S. 833 (1976),
overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); Hudgens v.
NLRB, 424 U.S. 507 (1976); Taylor, 419 U.S. 522.
219 See Mapp v. Ohio, 367 U.S. 643 (1961); Barnette, 319 U.S. 624; Murdock, 319 U.S.
105.
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of Justices have served),220 Harlan,221 and White222 each switched twice.
Chief Justice Warren223 and Justice Clark224 changed once, while Justices
Frankfurter and Marshall never changed votes in an overruling when they
had participated in Case A.225 What is striking is that liberals and conservatives did not differ in their willingness to change their minds even against a
background of stare decisis.226
The era of Republican dominance commenced with President Nixon
and extended to either the Clinton or Obama presidency,227 and Republicans gained a majority on the Court during President Nixon’s first term228—
leading to the overrulings in National League of Cities and Gregg. Both Justices
Stewart and White changed their minds in the latter, but going forward the
Justices appointed by Republican Presidents (and they were all appointed by
Republicans for the quarter-century after Justice Thurgood Marshall took his
seat) proved extraordinarily reluctant to change a previously held position.
Justice Harry Blackmun, the weakest link in National League of Cities,
declared the case unworkable when he wrote the overruling Garcia opinion.
Justice O’Connor changed her mind on same-sex sexual conduct, going from
the fifth vote in the Bowers majority to an irrelevant sixth vote (on different—
equal protection—grounds) in Lawrence.229 Justice Kennedy changed his
mind on capital punishment for those who committed murder as juveniles as
well as for those who are mentally retarded. In the juvenile murder case he
became the overruling fifth vote. In the mental retardation case Justice
O’Connor also switched and a six-to-three overruling resulted.
Justices appointed in the last third of the twentieth century, whether liberal or conservative or moderate, just did not change their minds in overruling. Chief Justice Burger never did, nor did Chief Justice Rehnquist or
Justices Scalia or Thomas. Justice Lewis Powell didn’t either. Liberals were
just as stubborn: Justices Ginsburg, Breyer,230 and Souter never changed.
220 See Taylor, 419 U.S. 522; Barnette, 319 U.S. 624; Murdock, 319 U.S. 105.
221 See Ashe v. Swenson, 397 U.S. 436 (1970); Reid v. Covert, 354 U.S. 1 (1957).
222 See Batson, 476 U.S. 79; Gregg, 428 U.S. 153.
223 Bruton v. Maryland, 391 U.S. 123 (1968) (involving a co-defendant confession at
joint trial).
224 Harper v. Va. Bd. of Elec., 383 U.S. 663 (1966).
225 I have excluded those Justices who served only briefly: Justices Reed, Burton, Minton, Whittaker, Goldberg, and Fortas.
226 Using a much larger time frame and different (and much larger) data set, Jeffrey A.
Segal and Harold J. Spaeth reach a different conclusion: “Conservative justices are more
restrained, toward precedent at least, than are liberal justices.” JEFFREY A. SEGAL & HAROLD
J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 301 (2002).
227 For purposes of this discussion it is irrelevant because none of the appointees of
either President George W. Bush or Barack Obama have switched an initial vote in an
overruling case.
228 I am treating Justice Lewis Powell, a southern Democrat, as a Republican, which he
surely would have become once the South became Republican.
229 Lawrence v. Texas, 539 U.S. 558, 579 (2003).
230 Justice Breyer, like Justice Harlan in Ashe v. Swenson, 397 U.S. 436 (1970), changed a
vote based on acquiescing in an opinion he believed was wrongly decided. See Alleyne v.
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Most shocking, given his flip-flopping career,231 Justice Stevens never
changed in an overruling case. To be sure there were not the number of
significant constitutional cases decided within the generation that were overruled, but the consistency of these Justices in holding to their initial positions
offers a contrast with their predecessors. Perhaps the difference stems from
the earlier Justices being men of national reputation in public affairs232 and
the later ones having prior careers on lower courts and thus perhaps feeling
a stronger tug of stare decisis (at least when they had participated in the
original majority).
A second possible reason for the lack of switches was the changing
nature of significant overruled cases in the aftermath of Casey. They involved
hot-button issues—abortion, gay rights, affirmative action, capital punishment, campaign finance—on which the Justices (at least after Casey) maintained strong positions that proved quite impervious.233 The best reason
may be more careful vetting of potential nominees, especially of Republicans,
following the development by each political party of a distinctive constitutional vision.234 Republicans, who care passionately about taking over the
Supreme Court (and the judiciary generally), wanted no more Souters:
hence the cry of conservative opponents to the mention of Alberto Gonzales—“Gonzales is Spanish for Souter.”235 And there was reason behind their
fears.236 With two exceptions, every Justice who changed between Case A
and Case B (including Justices Harlan and Kennedy) went from a more conUnited States, 133 S. Ct. 2151 (2013) (overruling Harris v. United States, 536 U.S. 545
(2002)). If Apprendi v. New Jersey, 530 U.S. 466 (2000), could be overruled, Justice Breyer
would revert to Harris.
231 See Justin Driver, Judicial Inconsistency as Virtue: The Case of Justice Stevens, 99 GEO. L.J.
1263, 1263 (2011); Justin Driver, The Stevens Myth, NEW REPUBLIC, Apr. 29, 2010, at 19.
232 With the exception of Justices Brennan and Stewart.
233 There were exceptions, but not among the hard-core conservatives. At the end of
his career, Justice Blackmun switched on capital punishment. Callins v. Collins, 510 U.S.
1141, 1143–44 (1994) (Blackmun, J., dissenting). So did Justice Stevens. Baze v. Rees, 553
U.S. 35, 78 (2008) (Stevens, J., concurring). Justice O’Connor switched on affirmative
action, compare Grutter v. Bollinger, 539 U.S. 306 (2003), with Aderand Constructors, Inc.
v. Pena, 515 U.S. 200 (1995), and gay rights, where she had sole occasion among these
Justices to switch in an overruling case, Lawrence, 539 U.S. 558. And in Lawrence, she
offered the equal protection rationale which was more limited than the majority. Id. at
582–85 (O’Connor, J., concurring).
234 See generally H.W. Perry, Jr. & L.A. Powe, Jr., The Political Battle for the Constitution, 21
CONST. COMMENT. 641, 641–42 (2004).
235 Dana Milbank, Bush Picks a Loyalist to Replace a Politician; Counsel Gonzales Often
Clashed with Ashcroft, WASH. POST, Nov. 11, 2004, at A7; see also JAN CRAWFORD GREENBURG,
SUPREME CONFLICT 246 (2007).
236 What the parties cannot protect against is a change in party position on the Constitution occurring after the party has placed its Justices on the Court. This was illustrated by
the hostile reaction to Chief Justice John Roberts’s vote to sustain the Affordable Care Act
though the case would have been decided by an eight-to-one or seven-to-two ruling had it
come up in 2008 (since the constitutional claim against an individual mandate was first
articulated in 2009). Jack M. Balkin, From Off the Wall to On the Wall: How the Mandate
Challenge Went Mainstream, THE ATLANTIC, June 4, 2012, at 38.
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servative position to a more liberal one. And the two exceptions were from
over a quarter-century in the past: Justice Stewart went conservative three
(National League of Cities, Gregg, and Hudgens) to one (Taylor), while Justice
White split equally—Batson and Gregg.
A final, and quite speculative, reason might be a combination of reliance
and concern over possible backlash. The Justices know that intense partisans
adhere to the Court’s existing jurisprudence, and they would erupt (verbally)
if the decisions were reversed. With Bush v. Gore 237 and Citizens United v.
Federal Election Commission238 already on the books, the cry of “politics” would
be loud and clear.239 Indeed, this was articulated by the Casey majority.240
VI. CHANGING COMPOSITION
I have heretofore taken Casey more or less at its word (with appropriate
additions and some skepticism). But perhaps more skepticism is in order for,
after all, Justice Scalia, shortly after taking his seat, explained his vote to overrule by noting that “[o]verrulings of precedent rarely occur without changes
in the Court’s personnel.”241 Michael Gerhardt backs this up when he notes
that only four cases in the history of the Court have been overruled without a
change in the composition of the Court.242
At the end of his career, indeed in his last dissent, Justice Thurgood
Marshall took the gloves off to complain about the phenomenon of composition affecting results: “Power, not reason, is the new currency of this Court’s
decisionmaking. . . . Only the personnel of this Court did [change].”243 But
that was Justice Scalia’s point, and contra Justice Marshall, “[n]o matter how
strongly justices may feel that their decisions are both correct and timeless,
they have little sway over how subsequent justices . . . will understand those
decisions within the contexts in which they are functioning.”244 There was a
perfect example of this in Justice Frankfurter’s dissent in Baker v. Carr. He
believed that the injunction not to enter the political thicket was a timeless
truth. Less than two weeks after Baker he suffered several strokes that forced
his retirement; he attributed them to Baker.245
Historically Justice Scalia was spot on. The most famous quick overruling involved paper money issued during the Civil War. Hepburn v. Gris237 531 U.S. 98 (2000).
238 558 U.S. 310 (2010).
239 See MICHAEL J. KLARMAN, FROM THE CLOSET TO THE ALTAR (2013), for a strong statement of the backlash thesis from its author.
240 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865–68 (1992).
241 South Carolina v. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J., dissenting) (asserting that victim impact statements were inadmissible).
242 GERHARDT, supra note 31, at 11.
243 Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, J., dissenting) (deciding
that victim impact statements were admissible).
244 GERHARDT, supra note 31, at 203–04.
245 POWE, supra note 33, at 205.
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wold 246 held, by a four-to-three vote, that issuing greenbacks was
unconstitutional. That very day President Grant sent the nominations of William Strong and Joseph Bradley to the Senate. Once confirmed they voted
with the Hepburn dissenters to rehear the issue, and in Knox v. Lee,247 the
Court reversed itself and held legal tender valid.
Despite the renown of the massive switch of Justices Black, Douglas, and
Murphy in the Jehovah’s Witness cases, their defection alone could not
change Gobitis (or for that matter Jones v. City of Opelika,248 in which they
announced their change) because Justice Harlan Stone had been the sole
dissenter and three plus one still equaled a number less than five. To overrule Jones it took the subsequent appointment of Justice Wiley Rutledge—
who as a newly minted D.C. Circuit judge had criticized his superiors for the
Gobitis outcome.249 Once Justice Rutledge joined Justices Stone, Black,
Douglas, and Murphy, there were five sure votes to overrule Gobitis. Justice
Robert Jackson, who joined the Court after Gobitis and who joined the Jones
majority, cast the sixth vote to create the result in Barnette (his greatest
opinion).
Baker v. Carr was the last Warren Court overrule before the liberals got
their (all but) impregnable fifth vote in Justice Arthur Goldberg (and his
replacement Justice Abe Fortas) and, with it, the seeming ability to overrule
at will. Justices Black and Douglas in the majority and Justice Frankfurter
dissenting all held to their original positions. Chief Justice Warren and Justices Brennan and Stewart provided the necessary votes (with Justice Clark
joining in at the end). The new voting rights, criminal procedure, and
domestic security results all followed from the change in personnel, especially Justices Goldberg and Fortas.
Thus in Camara v. Municipal Court,250 seven Justices (all but Justices
White and Fortas) had participated in Frank v. Maryland on warrantless
municipal business searches, and all seven voted the same way in Camara.
Harper v. Virginia Board of Elections also was the result of the infusion of new
Justices.251 It is unusual because Justices Black and Douglas were on opposite sides. Justice Douglas wrote the majority and Justice Black dissented,
reversing from the earlier positions in which Justice Black was in the majority
and Justice Douglas dissented.252
With the exception of Taylor v. Louisiana and Garcia, all the Burger
Court’s significant overrulings were the result of new appointments. Justice
Stewart joined the four Nixon appointees to create the National League of
246 75 U.S. (8 Wall.) 603 (1869).
247 79 U.S. (12 Wall.) 457 (1871).
248 316 U.S. 584, 623 (1942), vacated per curiam, 319 U.S. 103 (1943).
249 JOHN M. FERREN, SALT OF THE EARTH, CONSCIENCE OF THE COURT 188–89 (2004).
250 387 U.S. 523 (1967).
251 383 U.S. 663 (1966). Although Justice Clark, undoubtedly because of his vote in
Baker v. Carr, switched his vote from fifteen years earlier in the summary affirmance of
Butler v. Thompson, 341 U.S. 937 (1951).
252 Butler, 341 U.S. 937.
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Cities majority, and he along with Justice White voted as the five new Republicans did in Gregg to reinstate capital punishment. In Hudgens, on labor pickets on private property, the Republican appointees (joined by Justices Stewart
and White again) were essential for the overruling of Logan Valley Plaza.
Justices Brennan and White changed their votes in Batson, but it was the
change in personnel that changed the holding on racial peremptory challenges. And in a switch from liberal to conservative holdings, the warrant
requirements of Aguilar and Spinelli were overruled because of the added
Republican Justices.
Since Justices Brennan and Marshall retired to be replaced by Justices
Souter and Thomas, the Court and its decisions have had a conservative cast.
The two exceptions to that in overrulings were the capital punishment cases
in which Justice Kennedy changed from his initial (and very early in his
career) vote and in Lawrence (in which Justice Kennedy’s substitution for Justice Powell changed the outcome).
Given that Justice Souter typically voted the way Justice Brennan did, it is
perhaps surprising that his replacement of Justice Brennan changed the
Court’s conclusion about the constitutionality of admitting victim impact
statements in the penalty phase of capital cases.253 Indeed, replacing Justice
Brennan with Justice Souter changed two cases that were but two and four
years old.254 These outcomes may be explicable on the assumption that the
recently seated Justice Souter had yet to hit his more liberal stride (or, perhaps, to the fact that victim impact statements accord decedents a measure of
dignity that the defendants did not accord them).
The two most consequential post-Brennan appointments were the
replacements of Justice Marshall with Justice Thomas, virtually his exact
opposite, and Justice O’Connor with Justice Samuel Alito, who is definitely
not the centrist Justice O’Connor became following Justice Powell’s retirement. Justice Thomas’s appointment quickly changed affirmative action in
government contracts in Adarand and the states’ Eleventh Amendment
immunity in Seminole Tribe. Justice Alito’s vote was necessary for the changed
result on partial-birth abortions (which Justice Ginsburg noted in her dissent255 and Justice O’Connor did, too, from her perch in retirement)256 and
much more importantly, in Citizens United. Chief Justice Roberts replacing
Chief Justice Rehnquist has had no effect on overruling (so far) even as it
had a profound effect in sustaining the Affordable Care Act.257
253 Payne v. Tennessee, 501 U.S. 808 (1991).
254 South Carolina v. Gathers, 490 U.S. 805 (1989); Booth v. Maryland, 482 U.S. 496
(1987).
255 Gonzales v. Carhart, 550 U.S. 124, 191 (Ginsburg, J., dissenting).
256 Joan Biskupic, O’Connor Says Rulings ‘Dismantled,’; Diversity Crucial to Highest Court,
USA TODAY, Oct. 5, 2009, at 1A.
257 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
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CONCLUSION
Justice Scalia’s claim about overruling being largely a function of personnel change is certainly more apt than Casey’s claim that overruling depends
on factors within the judicial process, and his claim supports Chief Justice
Rehnquist’s 1986 observation that “stare decisis in constitutional law is pretty
much of a sham.”258 Furthermore, there is considerable reason to believe
that Justice Scalia’s claim has become more correct over time because of
changes over the past quarter-century, compounded by the slowing of retirements over the past forty years.259
Justices seem less willing to rethink previously held positions. Justice
Kennedy backed off two of his earliest votes, and Justice O’Connor, who
always seemed to have an internal Gallup Poll as a compass,260 changed with
the nation on gay rights. But otherwise the judicial standard for sitting Justices has been once decided, finally decided. Only Justice Breyer, and only
by acquiescence in an earlier decision he believes was wrongly decided,261
among Justices appointed since 1988 has changed a position in an overruling
situation. Justices Burger and Powell, along with Chief Justice Rehnquist also
fall within that position. By contrast, in the earlier generation only Justices
Frankfurter and Marshall held firm.
The reason for the Justices’ unwillingness to switch is likely that the dominant rationale for overruling is “wrong the day it was decided.” Justices do
not like to be on the record as saying “I blew it”262—at least not since Justices
Black, Douglas, and Murphy did seventy years ago (and well before the era of
promoting lower court judges). Basically, for intragenerational overruling
that means Casey’s doctrinal exposition is wrong (and may have been wrong
the day it was decided). Changes in the Court’s personnel, not doctrinal
erosion or new perceptions of facts, determine when a precedent is
overruled.
258 JENKINS, supra note 40, at 250.
259 See REFORMING THE COURT (Roger C. Crampton & Paul D. Carrington eds., 2006).
260 See JEFFREY TOOBIN, THE OATH 50 (2012) (referring to Justice O’Connor as “a reliable vector for public opinion”).
261 See Alleyne v. United States, 133 S. Ct. 2151, 2166 (2013) (Breyer, J., concurring)
(overruling Harris v. United States, 536 U.S. 545 (2002)); see also supra note 230 and
accompanying text.
262 Off the record, and to Justice Douglas only, Justice Fortas admitted that he had
traded his vote in Ginzburg v. United States, 383 U.S. 463 (1966) (pandering can make nonobscene materials obscene), to convict for Justice Brennan’s vote in Memoirs v. Massachusetts, 383 U.S. 413 (1966) (deciding that Fanny Hill was not obscene because the work had
some value), to hold the book not obscene—and that he had been wrong to do so. See
L.A. Powe, Jr., The Obscenity Bargain: Ralph Ginzburg for Fanny Hill, 35 J. SUP. CT. HIST. 166,
173 (2010) (noting Justice Fortas’s assertion that “contrary to my principles, I . . . came out
against Ginzburg”).
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APPENDIX: OVERRULING CASES (CHRONOLOGICALLY)
Murdock v. Pennsylvania, 319 U.S. 105 (1943): Jehovah’s Witnesses selling
their literature are engaged in religious, not commercial, activity
Overruled case: Jones v. City of Opelika, 316 U.S. 584 (1942)
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943): Flag
salute cannot be made compulsory
Overruled case: Minersville School District v. Gobitis, 310 U.S. 586 (1940)
Reid v. Covert, 354 U.S. 1 (1957): Overseas civilian dependents of those in
military cannot be tried by courts martial
Overruled case: Kinsella v. Krueger, 351 U.S. 470 (1956)
Mapp v. Ohio, 367 U.S. 643 (1961): Fourth Amendment exclusionary rule
applies in state criminal trials
Overruled case: Wolf v. Colorado, 338 U.S. 25 (1949)
Baker v. Carr, 369 U.S. 186 (1962): Legislative districting is a justiciable controversy in federal courts
Overruled case: Colegrove v. Green, 328 U.S. 549 (1946)
Gideon v. Wainwright, 372 U.S. 335 (1963): Indigent state criminal defendants
must be provided counsel
Overruled case: Betts v. Brady, 316 U.S. 455 (1942)
Malloy v. Hogan, 378 U.S. 1 (1964): Privilege against self-incrimination is
applicable to the states
Overruled case: Adamson v. California, 332 U.S. 46 (1947)
Murphy v. Waterfront Commission, 378 U.S. 52 (1964): Use of compelled evidence from one jurisdiction cannot be used in a criminal trial in another
jurisdiction
Overruled cases: Feldman v. United States, 322 U.S. 487 (1944); Knapp v.
Schweitzer, 357 U.S. 371 (1958); Mills v. Louisiana, 360 U.S. 230 (1959)
Jackson v. Denno, 378 U.S. 368 (1964): Issue of voluntariness of a confession is
for the judge not the jury
Overruled case: Stein v. New York, 346 U.S. 156 (1953)
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Harper v. Virginia Board of Elections, 383 U.S. 663 (1966): Poll tax violates
equal protection
Overruled case: Butler v. Thompson, 341 U.S. 937 (1951)
Spevack v. Klein, 385 U.S. 511 (1967): Lawyer cannot be disbarred merely for
asserting the privilege against self-incrimination
Overruled case: Cohen v. Hurley, 366 U.S. 117 (1961)
Keyishian v. Board of Regents, 385 U.S. 589 (1967): New York’s anti-communist
Feinberg Law is unconstitutionally vague and cannot be sustained on the
basis that public employment is a privilege not a right
Overruled case: Adler v. Board of Education, 342 U.S. 485 (1952)
Afroyim v. Rusk, 387 U.S. 253 (1967): Involuntary denaturalization for living
abroad in country of birth is unconstitutional
Overruled case: Perez v. Brownell, 356 U.S. 44 (1958)
Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S.
541 (1967): Fourth Amendment bars prosecution of an individual who refuses to consent to a warrantless municipal inspection of private commercial
property
Overruled case: Frank v. Maryland, 359 U.S. 360 (1959)
Bruton v. United States, 391 U.S. 123 (1968): Non-testifying co-defendant’s
confession cannot be introduced at trial
Overruled case: Delli Paoli v. United States, 352 U.S. 232 (1957)
Moore v. Ogilvie, 394 U.S. 814 (1969): Ballot access residence requirements
are too restrictive under equal protection
Overruled case: MacDougall v. Green, 335 U.S. 281 (1948)
Ashe v. Swenson, 397 U.S. 436 (1970): Double jeopardy contains a collateral
estoppel component
Overruled case: Hoag v. New Jersey, 356 U.S. 464 (1958)
Taylor v. Louisiana, 419 U.S. 522 (1975): Automatic exemptions cannot
exclude women from jury duty
Overruled case: Hoyt v. Florida, 368 U.S. 57 (1961)
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Hudgens v. NLRB, 424 U.S. 507 (1976): There is no First Amendment right to
picket on private property open to the public
Overruled case: Amalgamated Food Employees Union Local 590 v. Logan Valley
Plaza, Inc., 391 U.S. 308 (1968)
National League of Cities v. Usery, 426 U.S. 833 (1976): Fair Labor Standards
Act cannot constitutionally be applied to essential state employees
Overruled case: Maryland v. Wirtz, 392 U.S. 183 (1968)
City of New Orleans v. Dukes, 427 U.S. 297 (1976): Purely economic regulation
need only pass rational basis test
Overruled case: Morey v. Doud, 354 U.S. 457 (1957)
Gregg v. Georgia, 428 U.S. 153 (1976): Capital punishment is constitutional
Overruled case: Furman v. Georgia, 408 U.S. 238 (1972)
Illinois v. Gates, 462 U.S. 213 (1983): Totality of the circumstances is appropriate standard to determine search warrant based on unnamed informant
Overruled cases: Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States,
393 U.S. 410 (1969)
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985): Fair
Labor Standards Act can be applied to municipal employees
Overruled case: National League of Cities v. Usery, 426 U.S. 833 (1976)
Batson v. Kentucky, 476 U.S. 79 (1986): Prosecutors may not base peremptory
challenges of jurors solely on the basis of race
Overruled case: Swain v. Alabama, 380 U.S. 202 (1965)
Solorio v. United States, 483 U.S. 435 (1987): Military may use courts martial for
non-service related crimes committed by military personnel
Overruled case: O’Callahan v. Parker, 395 U.S. 258 (1969)
Payne v. Tennessee, 501 U.S. 808 (1991): Victim impact statements are admissible in the penalty phase of a capital trial
Overruled cases: Booth v. Maryland, 482 U.S. 496 (1987); South Carolina v.
Gathers, 490 U.S. 805 (1989)
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Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992):
State may restrict abortions so long as law does not unduly burden a woman’s
right to choose
Overruled cases: City of Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416 (1983); Thornburgh v. American College of Obstetricians & Gynecologists,
476 U.S. 747 (1986)
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995): Affirmative action for
federally funded programs is subject to strict scrutiny
Overruled case: Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990)
Seminole Tribe v. Florida, 517 U.S. 44 (1996): Federal statute passed under Article I cannot divest states of their Eleventh Amendment immunity from suits
in federal courts
Overruled case: Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)
Agostini v. Felton, 521 U.S. 203 (1997): Federal government can pay for secular teaching at religious schools
Overruled cases: School District of Grand Rapids v. Ball, 473 U.S. 373 (1985);
Aguilar v. Felton, 473 U.S. 402 (1985)
Atkins v. Virginia, 536 U.S. 304 (2002): Cruel and unusual punishment forbids death penalty for mentally retarded
Overruled case: Penry v. Lynaugh, 492 U.S. 302 (1989)
Lawrence v. Texas, 539 U.S. 558 (2003): States may not criminalize homosexual sodomy
Overruled case: Bowers v. Hardwick, 478 U.S. 186 (1986)
Roper v. Simmons, 543 U.S. 551 (2005): Cruel and unusual punishment forbids executing people for crimes committed while minors
Overruled case: Stanford v. Kentucky, 492 U.S. 361 (1989)
Gonzales v. Carhart, 550 U.S. 124 (2007): Criminalizing partial-birth abortion
does not unduly burden a woman’s right to choose
Overruled case: Stenberg v. Carhart, 530 U.S. 914 (2000)
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010): Government
cannot limit the amount contributed or spent to influence an election by
private entities unaffiliated with a candidate
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Overruled cases: Austin v. Michigan State Chamber of Commerce, 494 U.S. 652
(1990); McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
Alleyne v. United States, 133 S. Ct. 2151 (2013): All facts that increase a
mandatory minimum sentence must be found by the jury
Overruled case: Harris v. United States, 536 U.S. 545 (2002)
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